Earlier this month, the U.S. House of Representatives passed H.R. 842, the Protecting the Rights to Organize (PRO) Act, by a largely partisan vote of 225-206. The legislation, which the Senate may consider soon, will alter labor-management relations and threaten crucial employee rights.
In 1935, then-President Franklin D. Roosevelt signed into law the National Labor Relations Act or Wagner Act. Among other things, the Wagner Act fundamentally altered the workplace by defining how an employer can legally enter into one of the following agreements:
Closed shop agreement—a contract whereby an employer agrees to hire and retain for employment only employees who are members in good standing of the trade union.
Union shop agreement—a contract whereby an employer is permitted to hire non-union employees provided employees join the union by a specified time.
Agency shop agreement—a contract whereby an employer is permitted to hire non-union employees provided employees pay service fees to the union to cover the cost of collective bargaining.
Open shop agreement—an arrangement whereby an employer is permitted to hire non-union employees and employees are not required to join or financially support the union.
Because the Wagner Act also provided broad latitude for unions to engage in concerted activity, it created a propensity for strikes. The increase in strikes essentially forced employers to enter into either closed or union shop agreements and given their prevalence, limiting employees access to gainful employment without union representation. By the mid-1940s, strikes were so widespread that nearly 2 million workers were caught up in strikes that denied them the ability to oppose union wishes while causing significant disruption to the flow of commerce.
A change had to occur.
The Taft-Hartley Act recalibrated labor-management relations to provide greater choice to individual employees, while providing states the opportunity to enact prohibitions on closed and union shop agreements for employees working within their respective state. Any state that passed such a ban became known as a "Right-to-Work" (RTW) state.
By the time Taft-Hartley Act was enacted, nearly ten states had either amended their state constitutions or passed RTW legislation. Today, 27 states provide RTW protections and the U.S. Supreme Court has further extended RTW protections to public sector employees by prohibiting agency shop agreements—ruling that collection of service fees for collective bargaining purposes violates individual rights under the First Amendment.
In 1950, union membership represented nearly twenty-five percent of the workforce, whereas today, union representation represents approximately eleven percent of the workforce. Unions argue that the decline in unionization directly correlates to the proliferation of RTW laws, leading to the unions’ insistence that the PRO Act preempt state RTW laws. Others argue that unions’ value proposition is less relevant in a modern workforce—particularly in retail—as workplace safety standards far exceed what existed at the time of Taft-Hartley, the average retail wage far exceeds the federal minimum, and most full-time workers have access to benefits, all traditional bellwether issues for unions. This poses the question of why Congress should revoke RTW protections.
In many ways, the modern workplace, one reliant on technology and requiring flexibility to accommodate the gig economy, has moved beyond unions’ ability to recognize employee rights that have been enshrined in law for more than 70 years. Why then should Congress be in the business of revoking these fundamental rights guaranteed to all employees?
If you agree or have concerns that either of your U.S. Senators may vote to revoke your state RTW laws, I encourage you to work with RILA and your state retail association to convey your concerns. Please feel free to reach out to me at Patrick.firstname.lastname@example.org to make any introductions.
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